The Fair Play Settlers of the West Branch Valley, 1769-1784 Part 5

[21] The ambiguity of the term "New Purchase" becomes apparent once it is recognized that territorial acquisitions of both Stanwix treaties adopted that appellation.

[22] Dunaway, _The Scotch-Irish of Colonial Pennsylvania_, pp. 28-49.

[23] Northumberland County Courthouse, Sunbury, Pa., Penns & C.

1782-1811 Tax a.s.sessments, Cabinet #1. This book, found in the cellar of the courthouse, also contains the Pine Creek a.s.sessment for 1789.

[24] _Pennsylvania Archives_, Third Series, XIX, 618-622.

[25] _Pennsylvania Archives_, First Series, XII, 286-287. The squatters, apparently warned in advance, had practically all vacated the premises.

However, neighbors across the river willingly gave their names.

[26] _Pennsylvania Archives_, Third Series, XIX, 437, 468, 557, 711, 790.

[27] _Pennsylvania Archives_, Second Series, III (1875), 217, 518-522.

The original pet.i.tions of 1781 and 1784 are located in the State Archives, Harrisburg.

[28] Penn's colony was well advertised, and the emphasis upon liberty of conscience, when contrasted with the restrictions of the Test Act, gives ample support for the significance of liberty as a motivating factor.

However, economic causes predominated.

[29] Ray Allen Billington, _Westward Expansion_ (New York, 1960), p.

380. Billington refers here to the distribution-pre-emption measure of 1841, whereas Congress actually recognized squatters' rights in the act of 1830.

[30] Williams, "The Scotch-Irish in Pennsylvania," p. 382.

CHAPTER THREE

_The Politics of Fair Play_

The political system of these predominantly Scotch-Irish squatters in the Susquehanna Valley, along the West Branch, offers a vivid demonstration of the impact of the frontier on the development of democratic inst.i.tutions. Occupying lands beyond the reach of the Provincial legislature, with some forty families of mixed national origin in residence by 1773, these frontier "outlaws" had to devise some solution to the question of authority in their territory.[1] Their solution was the extra-legal creation of _de facto_ rule historically known as the Fair Play system. The following is a contemporary description of that system:

There existed a great number of locations of the third of April, 1769, for the choicest lands on the West Branch of Susquehanna, between the mouths of _Lycoming_ and _Pine creeks_; but the proprietaries, from extreme caution, the result of that experience, which had also produced the very penal laws of 1768, and 1769, and the proclamation already stated, had prohibited any surveys being made beyond the _Lycoming_. In the mean time, in violation of all law, a set of hardy adventurers, had from time to time, seated themselves on this doubtful territory. They made improvements, and formed a very considerable population. It is true, so far as regarded the rights to real property, they were not under the protection of the laws of the country; and were we to adopt the visionary theories of some philosophers, who have drawn their arguments from a supposed state of nature, we might be led to believe that the state of these people would have been a state of continual warfare; and that in contests for property the weakest must give way to the strongest. To prevent the consequences, real or supposed, of this state of things, they formed a mutual compact among themselves. They annually elected a tribunal, in rotation, of three of their settlers, whom they called _fair play men_, who were to decide all controversies, and settle disputed boundaries. From their decision there was no appeal. There could be no resistance.

The decree was enforced by the whole body, who started up in ma.s.s, at the mandate of the court, and execution and eviction was as sudden, and irresistible as the judgment. Every new comer was obliged to apply to this powerful tribunal, and upon his solemn engagement to submit in all respects, _to the law of the land_, he was permitted to take possession of some vacant spot. Their decrees were, however, just; and when their settlements were recognized by law, and _fair play_ had ceased, their decisions were received in evidence, and confirmed by judgments of courts.[2]

The idea of authority from the people was nothing new; in fact, it is as old as the Greeks. Nor is the concept of a "social compact," here implied, particularly novel to the American scene. The theory was that people hitherto unconnected a.s.sembled and gave their consent to be governed by a certain ruler or rulers under some particular form of government.[3] Theoretically justified by John Locke in his persuasive defense of the Glorious Revolution, it had been practiced in Plymouth, Rhode Island, Connecticut, and New Hampshire, where practical necessity had required it for settlements occasionally made outside charter limits. The frontier, whether in New England or in the West Branch Valley, created a practical necessity which made popular consent the basis of an actual government.

They were not "covenanters" in the Congregational sense of having brought an established church with them to the Fair Play territory. But the Fair Play settlers understood and subscribed to the principle of popular control, which was fundamental to such solemnly made and properly ratified agreements. Separated from the authority of the crown, detached from the authority of the hierarchy of the church by the Protestant Reformation, possessing no American tradition of extensive political experience, these settlers could only depend upon themselves as proper authorities for their own political system.

Furthermore, the great majority of the settlers who came to the Fair Play territory came from families who had left their homes in the old country to escape political, economic, and social restrictions, only to be made unwelcome in their new homes in the settled areas of Pennsylvania. Displaced persons in a new country, they were forced by lives of conflict to seek better opportunity by moving to undeveloped lands. As a result, they settled along the West Branch of the Susquehanna, beyond the authority of the crown and outside the pressures of the Provincial legislature.

If man is a predatory beast in his natural state, a belief some expressed in the eighteenth century, then it follows naturally that every society must have some agency of authority and control. The universally standardized solution to the problem of social control is government. The Fair Play system was the answer on this Susquehanna frontier to the need for some legitimate agency of force.[4] This system vested authority in the people through annual elections of a tribunal of three of their number. The members of the tribunal were given quasi-executive, legislative, and judicial powers over all the settlers in the West Branch Valley "beyond the purchase line."[5]

Although no record of any of these elections has been preserved, the composition of the Fair Play tribunal in 1776 has been established and verified by subsequent reviews of land claims in the county courts.[6]

Also, two of the members of the tribunal of 1775 are identified in a pre-emption claim made before the Lycoming County Court in 1797.[7] It is interesting to note that among these five men are represented the three most prominent national stock groups in the area, with the Scotch-Irish, as our earlier sample demonstrated, in the majority.

Lacking returns of the annual elections of the tribunal and minutes of its actual meetings, we have only Smith's _Laws of the Commonwealth of Pennsylvania_, pet.i.tions from the Fair Play settlers, and the subsequent review of land questions by the Northumberland and Lycoming County courts to evaluate the tribunal, its members, and its procedures.

However, these data are more than adequate in giving us a picture of this _de facto_, though illegal, rule, which existed in the West Branch Valley until the Treaty of Fort Stanwix in 1784 brought the territory under Commonwealth jurisdiction. The composition of the electorate varied with the fluctuations in population caused by the two Stanwix treaties, the Revolution, and the Great Runaway.

Since property and religious qualifications were the primary prerequisites to voting at this time, it seems logical to a.s.sume that a similar basis for suffrage operated in the West Branch Valley.[8] Having no regular church--the first, a Presbyterian, was not organized until 1792--property qualifications appear to have been the basis for what, in this area, was practically universal manhood suffrage. Due to the fact that the entire settlement consisted of squatters, practically all of the heads of households were property holders, regardless of the questionable legality of their holdings. The tax lists indicate holdings of some 100 to 300 acres on the average for residents, so it is particularly difficult to know whether or not a minimum holding requirement prevailed. The Provincial suffrage requirement in this period was generally fifty acres of land or 50 of personal property.[9]

Although this study encompa.s.ses a fifteen-year period from 1769 to 1784, it appears that the Fair Play system functioned for about five years, from 1773 to 1778. This is due to the fact that only "fourty Improvements,"[10] meaning forty family settlements, existed in the area by 1773, and that following the Great Runaway of 1778, the territory was almost devoid of settlers. The void was filled, however, when settlers began returning toward the end of the Revolution and following the accession of the territory in the second Stanwix Treaty, in 1784. Thus, for all practical purposes, the functioning of the Fair Play system was confined to this more limited time. Furthermore, the system was supplemented in 1776 by the introduction of the Committee of Safety, and later that year by the Council of Safety.[11]

As is indicated in Smith's _Laws_, annual meetings were held to select the governing tribunal of three for the ensuing year. Generally convened at some readily accessible place, these sessions were presumably held in the open or at one of the frontier forts erected in the area: Fort Antes, across the river from Jersey Sh.o.r.e; or Fort Horn, located on the south side of the Susquehanna about eight miles west of Jersey Sh.o.r.e.

There were frontier forts in the vicinity of the present Muncy--Fort Muncy--and Lock Haven--Fort Reed; but Fort Muncy was some twenty-odd miles east of the Fair Play territory and Fort Reed was beyond the Great Island at its western extremity. As a result, these outposts were unlikely meeting places for the tribunal or for its election.[12]

Unfortunately, there is no recorded evidence of a specific meeting of the Fair Play men.

The authority of the Fair Play tribunal extended across the entire territory from Lycoming Creek to the Great Island on the north side of the West Branch of the Susquehanna. However, most of the disputed cases, which can be verified by subsequent court reviews in either Northumberland or Lycoming counties, seem to have involved land claims in the area between Lycoming and Pine creeks. The tribunal accepted or rejected claims for settlement in the area and decided boundary questions and other controversies among settlers.[13] As to a specific code of laws, there is none of record. However, the cases subsequently reviewed in the established county courts refer to some of their regular practices. For example, any man who left his improvement for six weeks without leaving someone to continue it, lost his right to the improvement;[14] any man who went into the army could count on the Fair Play men (the tribunal) to protect his property;[15] any man who sought land in the territory was obliged to obtain not only the approval of the Fair Play men but also of his nearest potential neighbors;[16] and the summary process of ejectment which the Fair Play men exercised was real and certain and sometimes supported by the militia.[17]

The specific membership of the Fair Play tribunal is rather difficult to ascertain due to its failure to keep minutes of its proceedings and the absence of any recorded code. However, as indicated earlier,[18] the existence of the tribunal between the years 1773 and 1778, and its actual composition in 1775 and 1776, have already been established from the review of its decisions by the Circuit Court of Lycoming County.

a.s.suming the principle of rotation from a contemporary description, some eighteen settlers held the positions of authority during the years noted.[19] The cases reviewed reveal the names of five of these eighteen. Recognizing the limitations of our twenty-eight per cent sampling, however, it is interesting to note that the three major national stocks are represented in this restricted sample. Furthermore, as was mentioned previously,[20] the Scotch-Irish settlers, being in the majority, enjoyed the majority representation on the tribunal. An a.n.a.lysis of leadership in the territory, to be developed more fully later, leads one to conclude that the Scotch-Irish, in the main, were the political leaders of the area.[21]

A diligent search of some sixty cases in the Court of Common Pleas in both Northumberland and Lycoming counties yielded some doc.u.mentary evidence regarding the procedures of the Fair Play tribunal.[22] Three cases in Lycoming County and one from Northumberland County contain depositions which describe the activities of the Fair Play men in some detail. One case, _Hughes_ vs. _Dougherty_, was appealed to the Supreme Court of the Commonwealth. All of the cases deal with the question of t.i.tle to lands in the Fair Play territory following the purchase of these lands at the Treaty of Fort Stanwix in 1784. The depositions taken in conjunction with these cases indicate the processes of settlement and ejectment, in addition to the policies regarding land tenure. The fairness of the Fair Play decisions is noted by the fact that the regular courts concurred with the earlier judgments of the tribunal.[23]

An anecdote involving one of the Fair Play men, Peter Rodey, ill.u.s.trates the nature of this frontier justice. According to legend, Chief Justice McKean of the State Supreme Court was holding court in this district, and, curious about the principles or code of the Fair Play men, he inquired about them of Peter Rodey, a former member of the tribunal.

Rodey, unable to recall the details of the code, simply replied: "All I can say is, that since your Honor's coorts have come among us, _fair play_ has entirely ceased, and law has taken its place."[24]

The justice of "fair play" and the nature of the system can be seen from an a.n.a.lysis of the cases reviewed subsequently in the established courts. As mentioned previously, these cases describe the procedures regarding settlement, land tenure, and ejectment. Although no recorded code of laws has been located, references to "resolutions of the Fair Play men" regularly appear in the depositions and summaries of these cases.[25] According to Leyburn, a customary "law" concerning settlement rights operated on the frontier, particularly among the Scotch-Irish.[26] This "law" recognized three settlement rights: "corn right," which established claims to 100 acres for each acre of grain planted; "tomahawk right," which marked off the area claimed by deadening trees at the boundaries of the claim; and, "cabin right,"

which confirmed the claim by the construction of a cabin upon the premises. If the decisions of the regular courts are at all indicative, Fair Play settlement was generally based upon "cabin right." However, the frequent allusion to "improvements" implies some secondary consideration to what Leyburn has defined as "corn right."

In the case of _Hughes_ vs. _Dougherty_, the significance of "improvements," or "corn rights," vis-a-vis "cabin rights" is particularly noted.[27] The following summary of that case, found in _Pennsylvania Reports_, emphasizes that significance, in addition to defining a Fair Play "code" pertaining to land tenure:

THIS was an ejectment for 324 acres of land, part of the Indian lands in _Northumberland_ county.

The plaintiff claimed under a warrant issued on the 2d _May_ 1785, for the premises, and a survey made thereon upon the 10th _January_ 1786. The defendant, on the 20th _June_ 1785, entered a caveat against the claims of the plaintiff, and on the 5th _October_ following, took out a warrant for the land in dispute, on which he was then settled. Both claimed the pre-emption under the act of 21st _December_ 1784,[28] and on the evidence given the facts appeared to be:

That in 1773, one _James Hughes_, a brother of the plaintiff, settled on the lands in question and made some small improvements.

In the next year he enlarged his improvement, and cut logs to build an house. In the winter following he went to his father's in _Donegal_ in _Lancaster_ county, and died there. His elder brother _Thomas_ was at that time settled on the Indian land, and one of the "Fair Play Men," who had a.s.sembled together and made a resolution, (which they agreed to enforce as the law of the place,) that "if any person was absent from his "settlement for six weeks he should forfeit his right." [Quotation marks as published.]

In the spring of 1775 the defendant came to the settlement, and was advised by the Fair Play Men to settle on the premises which _Hughes_ had left; this he did, and built a cabin. The plaintiff soon after came, claiming it in right of his brother, and aided by _Thomas Hughes_, took possession of the cabin; but the defendant collecting his friends, an affray ensued, in which _Hughes_ was beaten off and the defendant left in possession. He continued to improve, built an house and stable, and cleared about ten acres. In 1778 he was driven off by the enemy and entered into the army. At the close of the war, both plaintiff and defendant returned to the settlement, each claiming the land in dispute.

The warrant was taken out in the name of _James Hughes_, (the father of the plaintiff who is since dead,) for the benefit of his children.

After argument by Mr. _Charles Smith_ and Mr. _Duncan_ for the plaintiff, and Mr. _Daniel Smith_ and Mr. _Read_ for the defendant, Justice _Shippen_ in the charge of the court to the jury, said--

The dispute here, is between a first improvement, and a subsequent but much more valuable improvement. But neither of the parties has any legal or equitable right, but under the act of the 21st _December_ 1784. The settlement on this land was against law. It was an offence that tended to involve this country in blood. But the merit and sufferings of the actual settlers cancelled the offence, and the legislature, mindful of their situation, provided this special act for their relief. The preamble recites their "resolute stand and sufferings," as deserving a right of pre-emption. The legislature had no eye to any person who was not one of the occupiers after the commencement of the war, and a transient settler removed, (no matter how,) is not an object of the law. This is our construction of the act. _James Hughes_ under whom the plaintiff claims, died before the war, the other occupied the premises after, and in the language of the act, "stood and suffered." If this construction be right, the cause is at an end.

Besides, the plaintiff claims as the heir of _Thomas_, who was the heir of _James_, the first settler. I will not say that the fair play men could make a law to bind the settlers; but they might by agreement bind themselves. Now _Thomas_ was one of these, and was bound by his conduct, from disputing the right of the defendant.

This warrant it seems, is taken out in the name of the father, and it is said, as a trustee for his children. It is sometimes done for the benefit of all concerned. If this be the case, it may be well enough; but still it is not so regular, as it might have been[.]

With these observations, we submit it to you.

Verdict for the defendant.[29]

This case, although originated in the Northumberland County Court in 1786, was appealed to the State Supreme Court, where the lower court decision was affirmed in 1791. The summary runs the gamut of Fair Play procedures from settlement, through questions of tenure, to ejectment.

Its completeness indicates its usefulness. Partial and occasional depositions in the other cases cited help to round out the picture of the Fair Play "code."